Biker 'throttles' traffic: Net neutrality advocates seek ways to block FCC rule

WASHINGTON (Sinclair Broadcast Group) — After the Federal Communications Commission voted in December to repeal net neutrality rules, filmmaker and YouTuber Rob Bliss was concerned that the public wasn't entirely grasping the concept. So he took matters into his own hands to demonstrate what internet users might expect if the regulations on net neutrality are lifted.

Late last month, Bliss hopped on his bicycle and "throttled" traffic in front of the FCC building in downtown Washington, D.C. His answer to the FCC's Restoring Internet Freedom Order was "Restoring Automotive Freedom at the FCC."

"I feel that net neutrality is such an intangible idea," he explained, "but simply by bringing it into the real world, people now can understand why it's such an issue."

For three days straight, Bliss played the role of an internet service provider. He set up cones restricting traffic to a single lane and rode his bicycle at a crawl down 12th Street SW. Frustrated drivers lined up behind him honking and cursing, staring at the sign on his back offering a $5 "priority access" plan to use the "fast lane."

When police showed up (some amused, some not), Bliss paraphrased FCC Chairman Ajit Pai, explaining to the officers, "People can pick the plan that's best for them."

When the Restoring Internet Freedom Order passed on a party-line vote at the end of 2017, it was met with intense public resistance that went beyond traffic jams in front of FCC headquarters. The order repealed a 2015 rule that established "bright line" rules explicitly prohibiting ISPs from blocking content, throttling users' internet speeds and enacting paid prioritization, or internet "fast-lanes" available for a fee.

Chairman Ajit Pai explained that the repeal put an end to the "utility-style" regulations and "substantial costs" imposed on broadband providers. "In place of that heavy-handed framework, the FCC is returning to the traditional light-touch framework that was in place until 2015," the chairman said.

Net neutrality advocates are now preparing a three-pronged attack to block the rule using Congress, the courts, and state legislatures, while supporters of the FCC's "light-touch" approach say it's a losing war.

THE CONGRESSIONAL REVIEW ACT

On Thursday morning, the FCC officially filed their rule overturning previous net neutrality regulations, starting a 60-day countdown for Congress to block the action.

Under the 1996 Congressional Review Act, lawmakers have 60 legislative days to stop a rule enacted by a federal agency from going into effect. Under the CRA, a majority in both houses of Congress must pass a joint resolution of disapproval in order to block a federal rule.

In December, Democratic Sen. Ed Markey of Massachusetts filed a CRA resolution to stop the FCC's net neutrality repeal from going into effect. The resolution currently has support from all 49 Senate Democrats and one Republican, Sen. Susan Collins of Maine, leaving it one vote shy of assured passage.

Markey issued a statement on Thursday calling on Republicans in the Senate to back his resolution. "We're coming for our net neutrality and we will not stop," Markey said.

Vice President of the advocacy group Public Knowledge, Chris Lewis is ratcheting up the pressure on Congress to support the CRA. Public Knowledge is joining a group of other advocacy groups and tech companies for a day of action on Tuesday, February 27, which will include a rally on Capitol Hill and online activism demanding Congress overturn the FCC rule.

"We have work to do to pass it in both chambers and we have a window of probably a few months, depending on when the House and Senate are in session," Lewis said. Acknowledging the difficult path ahead, Lewis is hopeful that the public and their representatives will take the issue of net neutrality seriously.

"This is very important," he stressed. "It's a protection that people have taken for granted because it's how the internet has always worked. So it's important that people know what it means ...when these protections go away and the importance of bringing them back."

Net neutrality advocates may only have to flip one Republican vote to get to 51 in the Senate, but faces a tough road in the House. The CRA resolution in the lower chamber faces grim prospects. It has slightly more than 100 co-sponsors and only a handful of Republicans have declared their support for preserving the 2015 net neutrality rule. It is also unlikely that President Donald Trump will approve the resolution overturning his own FCC.

Most polls suggest that the majority of Americans support net neutrality protections, with a recent poll putting that number above 80 percent.

Roslyn Layton, a tech policy expert at the American Enterprise Institute who served on the Trump FCC transition team, said that instead of leaving net neutrality decisions up to federal regulators, Congress should follow the lead of the nearly 50 countries that have created net neutrality laws.

"They've done it through the will of the people," she said. "If in fact [net neutrality] is so popular, then what is stopping us from making a law in Congress? It's a federal policy. It's a big part of our everyday life. That's the right thing to do."

There have been a number of bills and amendments introduced in Congress to establish laws that preserve net neutrality protections or prevent broadband providers from being regulated as common carriers, but no member of Congress has yet been able to produce a bill that has received the needed bipartisan support.

THE COURTS

The Thursday filing of the FCC rule in the federal register also opened the floodgates for a series of lawsuits against the FCC action led by state attorneys general, big tech companies and businesses. Thursday marked the first day litigators could file suits they have been preparing since last year.

New York Attorney General Eric Schneiderman made the announcement on Thursday. Joined by 22 other state attorneys general, he formally filed a petition to commence a lawsuit against the FCC.

"Today, the FCC made official its illegal rollback of net neutrality – and, as promised, our coalition of Attorneys General is filing suit," Schneiderman announced.

The attorneys general argue the rule change will put consumers and business at risk for abuse, as it removes explicit prohibitions against throttling, content blocking and increasing the cost of access. They further argue that the decision to change the rule was "arbitrary and capricious," as the members of the Federal Communications Commission failed to provide evidence that the 2015 rule was harming broadband providers, consumers or other interested parties.

Etsy, the online crafts marketplace, confirmed it was going to sue the FCC, but has yet to make an official announcement.

The Internet Association, representing companies including Facebook, Twitter, Google, Amazon, and Netflix, released a statement in January saying it throw its substantial political weight behind the lawsuits and join existing suits as an intervening party.

Public Knowledge also filed suit on Thursday, calling the FCC's action "illegal and procedurally flawed." In a statement, they argue that repealing net neutrality will give broadband providers "the green light to press forward with anti-competitive and anti-consumer business models."

"We have real concerns with the process the agency followed to make the decision as well as the substance of the decision," Lewis explained. "We believe the [2015] rules were popular, that they were working...and they were upheld in court."

After President Barack Obama's FCC passed the net neutrality rule, broadband providers and telecommunications companies filed seven petitions against the rule. The D.C. Circuit Court upheld the Obama administration's position and the ISPs appealed the ruling to the Supreme Court.

In those suits, the main complaint was the Obama administration's reclassification of broadband as a telecommunications service, rather than an information service. The 2017 rule, reverses that classification.

On Thursday, an FCC spokesman told Sinclair Broadcast Group the agency is confident the Restoring Internet Freedom Order will be upheld in court. "In 2005, the U.S. Supreme Court affirmed the FCC classification of broadband as a Title I information service, and we have every reason to believe that the courts will not contradict the FCC’s decision to return to that light-touch regulatory framework," the spokesman said.

STATE LEGISLATURES

One of the most difficult paths to overturn the FCC's repeal of net neutrality is being attempted by state legislatures. In Montana, California, New York, Rhode Island and Washington, state legislators and governors are trying to preserve net neutrality within their borders.

In Montana, Governor Steve Bullock issued an executive order requiring broadband providers with state contracts abide by the common principles of net neutrality.

In Washington State, a bill overwhelmingly passed the House and is advancing through the Senate, which would prohibit broadband companies from slowing internet speeds or offering customers the option to pay for faster speeds. It would also impose more rigorous consumer protections.

The statewide attempts to regulate the internet have a fundamental design flaw, said Layton.

"The internet, it originates from everywhere, it's destined for everywhere. So it inherently transcends any kind of state activity," she said, pointing out the obvious challenges of broadband providers having to adapt their services to fifty different sets of rules and regulations.

Layton further noted that the state officials who are concerned about consumer protections should be reassured by the repeal of the prior net neutrality regulations. By restoring the previous classification of the internet as an information service, the FCC, the Federal Trade Commission, the Department of Justice and state attorneys general have the authority to crack down on abuses.

"We have today four cops on the beat," Layton said.

The FCC reasserted that under the new order, "broadband Internet access service should be governed principally by a uniform set of federal regulations, rather than by a patchwork that includes separate state and local requirements."

Supporters and opponents of net neutrality rules have laid out multiple paths forward. In the next 60 days, there will be a lot of activity on both sides of the net neutrality debate in Congress, the courts, state houses and of course by throttling traffic in the middle of a city.